Cases And Materials: Commercial Law Essay

1710 words - 7 pages

Part 1: Tom v Whittless Pty Ltd
Tom is in a predicament where he needs a quick way to lose 4 centimeters off his waistline as quickly as possible, so when he see’s the advertisement for the ‘Whittless Waist Whittler’ he suddenly has the answer to his problems. How ever after using the Whittler as instructed for the time period instructed, Tom didn’t receive the results advertised and wished to claim the $1000 reward.

Firstly it is important to acknowledge that there is definitely a contract between the Tom and Whittless Pty Ltd. The offer in the contract is the initial advertisement of the Whittless Waist Whittler’, and the acceptance of the offer is the process of using the product as instructed. It makes no difference that Tom didn’t buy the Whittler himself, as the terms of the product do not specify that the offer is only available to those who purchase the product, further the offer isn’t the purchasing process, rather the advertisement, and the acceptance is not the purchasing process rather the actual carrying out of the instructions over the advertised period.
Further, the consideration in the Tom v Whittless Pty Ltd case is not the actual purchase of the product but rather the detriment of Tom giving up time and freedom to use the product, In this case the offeror doesn’t need to receive any tangible benefit. This legal principle was first used in Carlill v Carbolic Smoke Ball Co. [1983], Where Judge Lindley held that to accept an offer a person only has to follow the indicated method of acceptance, it will be seen as sufficient acceptance without notification If the offeror has either expressly or impliedly notified that the offer does not need to give notice of acceptance. Therefore the contract between Tom and Whittless Pty Ltd is legitimate, as he has followed the instructions given by Whittless Pty Ltd.

The claim for the $1,000 is legitimate for several reasons, firstly there is a binding contract between Tom and Whittless Pty Ltd as Tom has accepted the offer. The argument that the $1,000 is merely ‘not to be taken seriously’ as a reward is not true as there is sufficient evidence which proves the reward is not mere puff. Firstly in the original advertisement the section that states the reward of $1,000 is highlighted and repeated twice, “… we will give you $1,000. That’s right, we will give you $1,000.” The repletion of the $1,000 reward verifies the sincerity of the reward. There is also the argument that the $1,000 reward is not obscenely large as to put it out of the question of its sincerity. Lastly the advertisement clearly says “If you don’t lose 4 cm in 2 weeks, having used it twice a day every day... ”, Which Tom did and having not received the results promised by Whittless Pty Ltd Tom is rightfully allowed to press charges.

Part 2: Tom v Gonga-Go-Go
The initial letter sent by Tom on the 26th of March to the Gonga-Go-Go, regarding the enquiry for a Pod Party for 25 for the price of $2500, this first letter is not...

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